ADMINISTRATIVE ORDER GOVERNING PETITIONS FOR RISK ...

IN THE CIRCUIT COURT OF THE SEVENTEENTH

JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

Administrative Order 2019-12-Civ

ADMINISTRATIVE ORDER GOVERNING PETITIONS FOR RISK

PROTECTION ORDERS PURSUANT TO SECTION 790.401, FLA. STAT.

(a) Pursuant to Article V, section 2(d) of the Florida Constitution, and section

43.26, Florida Statutes, the chief judge of each judicial circuit is charged with the

authority and the power to do everything necessary to promote the prompt and

efficient administration of justice.

(b) Florida Rule of Judicial Administration 2.215(b)(3) states the chief judge

¡°shall, considering available resources, ensure the efficient and proper

administration of all courts within [this] circuit.¡±

(c) On March 9, 2018, Governor Rick Scott signed into law Senate Bill 7026, also

known as the Marjory Stoneman Douglas High School Public Safety Act, which,

among other things, enacted section 790.401, Florida Statutes, and amended certain

provisions of Florida¡¯s Baker Act.

(d) Section 790.401, Florida Statutes, as enacted by the Florida Legislature,

permits law enforcement agencies and officers to file a petition with the Circuit

Court for the issuance of a Risk Protection Order. The statute requires the Clerk of

the Court and the petitioning party to provide certain information to the Court.

(e) In accordance with the authority vested in the chief judge by Article V, section

2(d) of the Florida Constitution, section 43.26, Florida Statutes, and Florida Rule of

Judicial Administration 2.215, it is hereby ORDERED:

I.

Duties of the Clerk of the Court, Section 790.401, Florida Statutes

(1)

Upon receipt of a newly-filed petition for risk protection order, the Clerk of

the Court shall conduct a search of its records to determine if the respondent:

a. has had prior, or is currently involved in, any mental health or Baker Act

cases;

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b. was or currently is a Respondent in an action for a Risk Protection Order;

c. was or currently is the subject of a no contact order issued in an action for

stalking, domestic, sexual, or dating violence under sections 741.30, 784.046,

or 784.0485, Florida Statutes; or

d. was or currently is a defendant in a criminal action, including misdemeanor,

felony, or traffic infraction cases.

(2) After conducting the searches set out above, the Clerk of the Court shall

immediately file with the Court a certificate of compliance listing the case number(s)

of the related case(s) found or certifying no prior or pending cases could be found

after a diligent search. The Clerk of the Court shall utilize the ¡°Certificate of

Compliance¡± form attached hereto as Attachment ¡°A.¡±

(3) Upon receipt of a newly-filed petition for a risk protection order, the Clerk of

the Court shall inform the Court of the filing by sending a notification to

RPO@17th., which shall include the case number.

(4) All petitions for risk protection orders shall be designated RPO by the Clerk

of the Court and assigned to judicial divisions as directed by the Chief Judge or

designee.

(5) Upon issuance of an order required to be served pursuant to section

790.401(5)(a), Florida Statutes, the Clerk of the Court shall forward a certified copy

of the order and a copy of the law enforcement agency¡¯s petition to the petitioning

law enforcement agency or the Broward Sheriff¡¯s Office, as applicable, for service

by such agency.

(6) The Clerk of the Court shall, within three (3) business days after the issuance

of a temporary ex parte or final risk protection order, forward a copy of the order

and all available identifying information concerning the respondent to the Florida

Department of Agriculture and Consumer Affairs.

II.

Duties of the Petitioner, Section 790.401, Florida Statutes

(1) In determining whether grounds exist for the issuance of a risk protection

order, including a temporary ex parte risk protection order, the court may consider

any relevant evidence, including evidence relating to factors set forth in section

790.401(3)(c), Florida Statutes. Prior to filing a petition for a risk protection order,

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including a request for an ex parte risk protection order, the petitioning agency shall

conduct a search of law enforcement databases to determine whether the respondent:

a. has, within the past twelve (12) months, committed an act or threat of violence

against himself/herself or others;

b. has or has had in the past, serious or recurring mental health issues;

c. was or currently is, a respondent in an action for a risk protection order and

whether he/she violated a prior risk protection order;

d. was or currently is, the subject of a no contact order issued under sections

741.30, 784.046, or 784.0485, Florida Statutes;

e. has used or has threatened to use, a weapon against himself/herself or others;

f. has unlawfully or recklessly displayed or brandished a firearm;

g. has threatened physical force against or stalked another person;

h. in this State, or any other State, was arrested, convicted, had adjudication

withheld or pled nolo contendere to a crime involving violence or a threat of

violence;

i. has a history of abusing alcohol or controlled substances; and

j. recently acquired a firearm or ammunition.

(2) If the petitioning law enforcement agency discovers any of the above

information or other relevant evidence during its search of law enforcement

databases, the petitioning agency shall file such information with the Clerk of the

Court, unless already included in its¡¯ petition.

(3)

All petitions for a risk protection order shall:

a. allege the respondent poses a significant danger of causing personal injury to

himself/herself or others by having a firearm or ammunition in his/her custody

or control or by purchasing, possessing, or receiving a firearm or any

ammunition;

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b. be accompanied by an affidavit, based on personal knowledge, setting forth

the specific statements, actions, or facts that give rise to a reasonable fear of

significant dangerous acts by the respondent;

c. identify the quantities, types, and location of all firearms and ammunition the

petitioner believes to be in the respondent¡¯s current ownership, possession,

custody, or control, or the attempts by the petitioning agency to identify and

investigate whether the respondent owns, controls, or possesses firearms or

ammunition; and

d. identify whether there is a known existing protection order governing the

respondent under sections 741.30, 784.046, or 784.0485, Florida Statutes, or

under any other applicable statute.

(4) The petitioning agency shall attach to its petition a physical description and

location of the respondent. The law enforcement agency shall use a form that is

substantially similar to Attachment ¡°B.¡±

(5) In order to permit the Court to comply with its statutory duties to timely hold

hearings and issues orders in risk protection cases, the petitioning party shall send

an email notification to the Court at RPO@17th. upon the filing of a

petition and motion for extend a risk protection order.

(6) Upon service of any paper required to be served under section 790.401(5)(a),

Florida Statutes, the law enforcement agency effecting service shall file a return of

service with the Clerk of the Court as prescribed by the Florida Rules of Civil

Procedure.

(7) Within seventy-two (72) hours of service of a temporary ex parte or final risk

protection order, the law enforcement officer or agency taking possession of any

firearm or ammunition owned by the respondent, or a license to carry a concealed

weapon or firearm issued under section 790.06, Florida Statutes, shall issue a receipt

identifying all firearms and the quantity and type of ammunition that has been

surrendered, and any concealed weapons license surrendered, and shall file said

receipt with the Clerk of the Court.

III.

General Provisions

(1) The Clerk of the Court, any law enforcement agency or officer located within

Broward County, and the judicial officers and staff of the Seventeenth Judicial

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Circuit, may communicate via electronic means as prescribed by the Florida Rules

of Judicial Administration on any matter relating to notification of petitions for risk

protection orders or service of risk protections orders.

(2) All law enforcement agencies filing petitions for risk protection orders

pursuant to section 790.401, Florida Statutes, shall provide the Clerk of the Court

and Court Administration Office of the General Counsel an email address for

communications pertaining to service and notification of petitions for risk protection

orders. The email address shall be provided to the Court¡¯s designated risk protection

order email address at RPO@17th., and to the Clerk of the Court

designated risk protection order email address at RPO@.

(3) When requested by a law enforcement agency authorized to effect service

under section 790.401, Florida Statutes, the Clerk of the Court may transmit to the

petitioning agency via email, facsimile or other electronic transmission permitted

under the Florida Rules of Judicial Administration, a copy of any pleading or order

required to be served under section 790.401, Florida Statutes.

(4) Pursuant to section 790.401(14), the standard petition and risk protection

order forms, attached to this Administrative Order as Composite Exhibit ¡°C¡±, are to

be used for all risk protection order proceedings.

(5) Upon the filing of a petition for a temporary ex parte risk protection order, the

court must conduct an ex parte hearing on the day the petition is filed or on the next

business day. Unless ordered otherwise by the assigned division judge, all ex parte

hearings contemplated under section 790.401, Florida Statutes shall be conducted

by telephonic conference. All ex parte hearings will be scheduled by the Court and

it shall be the responsibility of the petitioning party to make the affiant or affiants of

the petition available for a telephonic conference call as prescribed by the Court.

Upon notification of the date and time for the ex parte hearing, the petitioning law

enforcement agency shall provide the assigned division judge with conference callin information or a direct telephone number.

(6)

Three (3) day compliance hearings relating to the surrender of firearms or

ammunition may be conducted by telephone, in person or as otherwise ordered by

the presiding judge. The Court may cancel the three (3) day compliance hearing

based on the filing of an affidavit demonstrating that the respondent is in compliance

with the ex parte or final order.

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